John Bolton and the ICC: Shifting the Paradigm or the Blame?

National Security Advisor John Bolton addressing a gathering of the Federalist Society in September (source)

In an audacious speech to the Federalist Society in Washington, D.C. earlier this month, National Security Adviser John Bolton voiced a multitude of grievances and threats against the International Criminal Court. He encapsulated his stance with the claim that “for all intents and purposes, the ICC is already dead to us.” Bolton’s comments came in response to the court’s recent efforts to open an investigation into possible war crimes conducted on behalf of the United States in Afghanistan since 2003. This investigation was brought to the court by the chief prosecutor, Fatou Bensouda, in November of last year.

This was not the first occasion Bolton has spoken out against the ICC. Soon after Bensouda introduced the charges to the court in November, Bolton wrote an op-ed for the Wall Street Journal incorporating many of the ideas that he reiterated in his speech to the Federalist Society. He previously made similar claims during his time working in the Bush administration. Throughout his tenure there, he championed efforts to convince the global community to adopt standards that would protect the US and its allies against ICC prosecution.

This time, however, Bolton made it clear that these sentiments are not just his own: “I want to deliver a clear and unambiguous message on behalf of the President of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC. And, certainly, we will not join the ICC.” In no uncertain terms, Bolton single-handedly and antagonistically reversed the Obama administration’s ICC policy, which aimed to generally comply with the functions of the court.

Six International Criminal Court judges pictured after being sworn in earlier this year (source)

Bolton attacked the legitimacy of the ICC, claiming that the court is ineffectual in its efforts to bring about justice. In doing so, Bolt perhaps failed to recognize an apparent dichotomy in his own perceptions of the court. By threatening sanctions against the court and any government that supports its investigations into America's actions abroad, he legitimized the body as a threat to United States sovereignty.

Bolton furthermore appealed heavily to nationalist ideals in his speech, marking a difference between international consensus (specifically in the case of the European Union) and the official US position regarding the benefits of the ICC. Through insinuating the notion that Americans should not fear prosecution for their actions, Bolton ignored decades of American policy and rhetoric venerating the importance of tribunals in deterring future crimes against humanity and criminals.

In addition, Bolton exaggerated the omnipotence of the ICC’s jurisdiction to bolster his argument against the investigation. The United Nations treaty that originally established the ICC rendered it a court of last resort, contrary to Bolton’s depiction of the international organization as an unconstrained, prosecution-hungry body. The ICC commented on this blatant dissonance in a statement released after the speech, saying that the “court’s jurisdiction is subject to the primary jurisdiction of states themselves to investigate and prosecute allegations of those crimes and bring justice to the affected communities. It is only when the states concerned fail to do so at all or genuinely that the ICC will exercise jurisdiction.”

Bolton’s speech aimed to taunt the ICC’s effectiveness, but the judicial body itself labeled his speech ineffective. In a statement, the court asserted that it was “undeterred” by the threats the Trump administration posited and that it would continue its path towards investigation. While Bolton aimed to move the onus of proving legitimacy onto the ICC, he further proved the validity of the court itself in honoring the law above all. As the ICC continues its work, Bolton must face the results of the costly game he played with the court’s resolve to carry out its mission of ending impunity for crimes of war and crimes against humanity.